We queer people will do everything to ensure our liberty, even if it takes some Bollywoodising

It's time to stand up, dance, and be counted.

It is March
2012, and the Indian Supreme Court is hearing arguments in Koushal v Naz,the case that will decide whether
millions of Indian adults should be condemned to criminality for having sex
with other adults to whom they are attracted or whom they love. An
almost-Bollywood moment occurs in court (but eventually only in my head).

I am sitting in
the fourth row on the extreme left of the courtroom. Arguments for striking
down this criminalisation prescribed by Section 377 of the Indian Penal Code
are being presented. The court interrupts the arguing lawyer and makes an
observation: that it is unaware of anyone who is homosexual, apart from some
historical figures who have been mentioned and an esteemed Australian judge. This
despite several eloquent testimonies of queer people being placed before the
court of how criminalisation gravely affects their lives.

The court’s
decision, issued a whole 22 months later reveals this line of thought to be
thus: We don’t know homosexual people, and if they do exist they are few and
far between; given their tiny presence their concerns don’t merit the time of
the apex constitutional court of India; let them meet their fate elsewhere i.e.
Parliament. In this most tragic, and inequitable of judgments the Indian
Supreme Court deemed homosexuals unworthy of its assistance, being that they
were merely a “minuscule fraction”.

But back to the almost-Bollywood moment: When this bewildering line of pondering
is being articulated I look around the room, and am about to tap the shoulder
of a queer lawyer sitting in front of me – visualising that filmi instant when
the few dozen of us queers in the courtroom (many of us in our lawyers gowns)
stand up one by one, to show that here we are, always ready to be counted.

The perils of reality

I’ve asked
myself why I hesitated that day. I did so because this was real life, not some
fantastical Bollywood movie; this was the gravitas of my nation’s court, an
institution I greatly respected, not some film set where all kinds of flourishes
are scripted; and, because this was about me and my miniscule fraction leading
full and free lives – the moments in court were delicate, vital, precious. What
could be perceived as grandstanding may only make things worse. So: button up
and keep sitting, Vivek! Of course, little did I know that in December 2013 my
minuscule fraction and I would be condemned to the straitjacket of criminalisation
all over again.

Now, let’s be clear about a couple of
things related to “minuscule fractions”. First, and less important – how minuscule
a fraction are we homos? Conservative
estimates would place us at 2% of any population. In India that’s a delightful 2.5
crores who are potentially criminal for indulging in sexual intercourse with
other adults of the same sex, as per the perverse Section 377 of the Indian
Penal Code. And, that’s not counting the many crores of heterosexual people who
enjoy non-procreative sex, thereby being covered by the same ridiculous law. Yet,
even if we only count the homos among us, it will include a colourful
cross-section of society – from captains of industry, actors, rickshaw drivers
and film producers to doctors, tailors, carpenters, and agriculturists; from homemakers,
journalists and athletes to lawmakers, judges, plumbers and domestic workers.

Second, some
foundational civics: in a plural democracy how does it
make a difference whether one is a minuscule (or large) fraction? Unless India
is a tyranny, are not all her people assured of fundamental rights? And,
although a democracy works through political will exercised through majority
rule, is that a democracy’s sole trait? Nations that profess democracy through
the fig leaf of free elections and majority will are tyrannies by another name.
A real democracy is one that forestalls tyranny by wedding majority rule with
the assurance of fundamental rights for all, including for all fractions,
miniscule or not. These rights can only be restricted if their exercise causes
harm to others. That’s the plainspeak of the Indian Constitution.

False claims

Also, about causing harm: no matter what
spurious sadhus might say or uninformed mischief-makers might claim – of
“curing” homosexuality through yoga, or the rampant child sex abuse that will
engulf India or the family structures that will collapse – there is absolutely
no evidence that the decriminalisation of homosexual sex between consenting
adults will have any ill-effects on society. It hasn’t done so wherever such
law reform has taken place, and in the four years between 2009 and 2013 that it
was decriminalised in India it only brought great relief, freedom and a sense
of personhood to millions of individuals and families. Other than loss of izzat,
I don’t know of any harm that adults involved in homosexual sex can possibly
cause to other persons, families, communities or society. And, if loss of izzatis reason enough then maybe we should
criminalise almost all human behaviour.

On the other hand, I do know of the great
harm that 377 has caused in many people’s lives. The media has covered stories
of suicide by and abuse, extortion and violence against queer people over the
years. But this is the tip of the iceberg, and these tragedies have seen an
upswing since the pitiful decision in Koushal. On the first anniversary of the
judgment, at a meeting held in Delhi to present firsthand accounts of this hate
and sadness, the testimonies were heart-rending – of families shunning members,
parents threatening children, public violence and police abuse and extortion.
The words “beaten”, “assaulted”, “raped”, “banished” were constantly uttered.

Running scared

When MPs who bore witness to these moving
accounts were asked to walk the talk of support that they had professed, the
response was stock – that Indian society needed to be ready before law reform
could be contemplated. That is humbug. First, sometimes it is law reform that
precipitates social change. And, second, there is nothing to suggest that
Indian society is not ready for the removal of 377. You ask people if their
son, daughter, brother or sister, friend or colleague should be jailed for
acting on their homosexual attractions, and I’m convinced you’ll get a
resounding “no”.

When the curative petition comes before the
Supreme Court on February 2, it is time for the honourable judges to imagine themselves
in their roles as fathers, mothers, siblings, colleagues or friends, and ponder
this question with all seriousness. Passing the buck to Parliament is not only
an abdication of constitutional responsibility, but also unviable – we’ve just
witnessed the phobia with which Shashi Tharoor’s bill to revoke 377 was
summarily and insolently thrown out by the Lok Sabha.

Years ago, I’d written with confidence that
with truth on our side, we queers will prevail. I am still convinced that
chicanery and small-mindedness will only be stumbling blocks on that journey. This
is written to once again stake a claim to be a full person in this land. It is
also to signal on behalf of queer people that we will not back down in using
all the constitutional tools available to us to be liberated. And, in that process,
we will continue to stand up and be counted, creating Bollywood moments in
courtrooms and anywhere the occasion calls for.

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Cover your basics

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Size matters

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The green quotient

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